Com. v. Morrow

• Citation: 296 N.E.2d 468,363 Mass. 601
• Parties: COMMONWEALTH v. Arthur J. MORROW.
• Decision Date: 11 May 1973
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 468

296 N.E.2d 468

363 Mass. 601

COMMONWEALTH v. Arthur J. MORROW.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 6, 1972.

Decided May 11, 1973.

Sumner D. Goldberg, Boston, for defendant.

Barbara A. H. Smith, Legal Asst. to the Dist. Atty., Milton, for Commonwealth.

Before TAURO, C.J., and REARDON, HENNESSEY, KAPLAN and WILKINS, JJ.

HENNESSEY, Justice.

The defendant appeals under G.L. c. 278, §§ 33A,--33G, from convictions under indictments charging him with armed burglary, rape, armed assault in a dwelling house, armed robbery and confining for purposes of stealing.

At the age of sixteen, the defendant was arrested and brought before the juvenile session of the District Court for the conduct which ultimately resulted in the indictments described above. He was represented by counsel at this session. The judge dismissed the delinquency complaint (G.L. c. 119, § 61) and caused criminal complaints to be issued in accordance with G.L. c. 119, § 75. After indictments were returned, the defendant was arraigned in the Superior Court where he was represented by appointed counsel. He pleaded not guilty. Subsequently, counsel withdrew by leave of court, and the court appointed Mr. Robert A. Barton in his stead. After a jury was empanelled, the defendant changed his pleas to guilty. Mr. Barton and the judge asked the defendant a number of questions concerning his pleas, after which the judge accepted pleas of guilty to all indictments. The defendant received the following sentences to be served concurrently at the Massachusetts Correctional Institution at Walpole: for armed burglary, fifteen to forty years; for rape, fifteen to twenty years; for armed assault in a dwelling house, fifteen to forty years; for armed robbery, thirty to forty years; for confining for purposes of stealing, thirty to forty years.

The defendant filed a motion for modification of the sentences and a motion to revoke the sentences and withdraw his pleas of guilty, but after an evidentiary hearing, ¹ both motions were denied. The defendant appealed and assigns as error the denial of these motions. The judge filed findings of fact as to the denial of the motion to withdraw his pleas of guilty.

1. We consider first the denial of the motion to revoke sentences and withdraw pleas of guilty. There was no error.

The record of a guilty plea entered subsequent to the decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, decided on June 2, 1969, ² is required to show affirmatively that a defendant who pleads guilty entered his plea understandingly and voluntarily. See Brady v. United States, 397 U.S. 742, 747--748, n. 4, 90 S.Ct. 1463, 25 L.Ed.2d 747; HUOT V. COMMONWEALTH, MASS., 292 N.E.2D 700.^A The Boykin case indicated that when a plea of guilty is entered in a State criminal trial, three Federal constitutional rights are waived: namely, the privilege against self-incrimination, the right to trial by jury and the right to confront one's accusers. 395 U.S. at 243, 89 S.Ct. 1709. Although the inquiry directed to the defendant in this case, before his pleas were accepted, was a searching one, only one of the three waived constitutional rights (waiver of jury trial) was the subject of a specific question or questions. No rule of the Superior Court required inquiries in these three areas. Compare Rule 11 of the Federal Rules of Criminal Procedure; Rule 4 of the Initial Rules of Criminal Procedure for the District Courts of Massachusetts (1971).

We conclude that the entire dialogue with the defendant was sufficient to satisfy the Commonwealth's burden of showing that the guilty pleas were understandingly and voluntarily made. ³ The Boykin case does not require that the judge expressly enumerate in detail the three rights waived. United States v. Webb, 433 F.2d 400, 403 (1st Cir.). Arbuckle v. Turner, 440 F.2d 586, 588--589 (10th Cir.). United States v. Frontero, 452 F.2d 406, 415 (5th Cir.). United States v. Tabory, 462 F.2d 352, 353 (4th Cir.). Nor is it crucial that most of the questions were asked by the defendant's attorney, rather than the judge. Compare Rule 11 of the Federal Rules of Criminal Procedure. However, the spontaneity and flexibility of the dialogue, which supports a conclusion of voluntariness, can best be achieved where the judge asks the questions. This also avoids even the appearance that the colloquy is but a prearranged script. Therefore, we think it would be better practice for the judge to ask the questions, just as we think it would be better practice to include specific inquiry as to the defendant's understanding waiver of the three constitutional rights. See the Huot case at 247, 292 N.E.2d 700.

In reaching our conclusion that there is here an affirmative showing of voluntary and intelligent pleas of guilty, we reject as unconvincing the several following arguments of the defendant which are addressed to the particular circumstances of this case.

The defendant argues that his pleas of guilty are defective since he was not advised that his pleas could subject him to the operation of G.L. c. 123A, which concerns the care, treatment and rehabilitation of sexually dangerous persons. In establishing that a guilty plea is offered intelligently and voluntarily by the defendant, the judge must ensure that the plea has been made with an understanding of the nature of the charge and the consequences of the plea. Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747. HUOT V. COMMONWEALTH, MASS., 292 N.E.2D 700.^B We conclude that the defendant was adequately informed of the consequences of his plea. He was convicted of the crime of rape and was therefore subject to disposition under G.L. c. 123A, § 4, in the discretion of the judge. Although the judge chose not to invoke § 4 in this case, the defendant could possibly be subjected to similar provisions under G.L. c. 123A, § 6, as a prisoner. The record reveals that he was told before his pleas were offered that the maximum penalty for the offences for which he was indicted was life imprisonment and that the court could give him, not only one life sentence, but a second life sentence on and after the first sentence. Being subject to G.L. c. 123A, is but one of many contingent consequences of being confined. Moreover, proceedings under § 6 of that statute are subject to the same safeguards as those under § 4. COMMONWEALTH V. BLADSA, MASS., 288 N.E.2D 813^C.

The defendant's reliance on Durant v. United States, 410 F.2d 689 (1st Cir.), is misplaced. The court in that case held that a defendant was entitled to know that, by statute, one convicted and sentenced for certain narcotics violations was ineligible for parole. That case interprets 'consequences of the plea' within the framework of Rule 11 of the Federal Rules of Criminal Procedure in the Federal courts. Such a rule is not applicable to State court proceedings. In any event, the case is factually distinguishable.

The defendant further contends that his pleas of guilty are defective since he was prompted to plead only after his counsel told him that if he did so, he would receive a lighter sentence. He also seems to argue that one who is sixteen years old is incapable of intelligently and voluntarily entering a plea of guilty. Neither argument is persuasive.

A plea of guilty is usually made in anticipation of a lighter sentence. A guilty plea, however, is not 'compelled and invalid under the Fifth Amendment whenever motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged.' Brady v. United States,397 U.S. 742, 751, 90 S.Ct. 1463, 1470, 25 L.Ed.2d 747.

A guilty plea to be intelligently made does not require that all advice offered by the defendant's counsel withstand retrospective examination. McMann v. Richardson, 397 U.S. 759, 769--771, 90 S.Ct. 1441, 25 L.Ed.2d 763. Parker v. North Carolina, 397 U.S. 790, 797--798, 90 S.Ct. 1458, 25 L.Ed. 785. Furthermore, the trial judge's finding that no promises were made to the defendant is clearly supported by the record. He was advised that neither his lawyer's advice nor the district attorney's recommendations were binding on the judge.

As to the defendant's age, the record shows that his decision to plead guilty was made in consultation with his father and his lawyer. The defendant was told that the ultimate decision to plead guilty was his. There is nothing in the record to indicate that the defendant was incompetent to stand trial. The same standard should be applied to the acceptance of a guilty plea.

The defendant argues that it was error for the judge to accept his plea of guilty to the charge of rape, because the facts before the judge did not indicate that the defendant penetrated the victim. A judge may accept a guilty plea even though there is no separate, express admission by the defendant that he committed the acts claimed to constitute the crime charged in the indictment. Indeed, the fact that a defendant professes innocence does not alone invalidate a guilty plea. North Carolina v. Alford, 400 U.S. 25, 32--38, 91 S.Ct. 160, 27 L.Ed. 162. HUOT V. COMMONWEALTH, MASS., 292 N.E.2D 700.^D A plea of guilty is an admission of the facts charged and 'is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. . . . When one so pleads he may be held bound.' Kercheval v. United states, 274 U.S. 220, 223--224, 47 S.Ct. 582, 583, 71 L.Ed. 1009. KUKLIS V. COMMONWEALTH, MASS., 280 N.E.2D 155.^E Nevertheless, it is desirable that a factual basis for the guilty plea be shown, by specific admissions of the defendant or other factual presentation made before the plea is accepted by the judge. ⁴ This showing can be of significant assistance...